In brief - the period between separation and finalising a divorce and property settlement has significant risk if you do not have a Will in place

Relationship breakdown is not uncommon. The nature of a relationship with a former spouse * can take many forms, from amicable to loathing and everything in between.

You should be mindful of the risk involved during the limbo period between separating from your partner and finalising a formal divorce and property settlement.

What happens to my estate if I am separated and don't have a Will?

If you die without a Will, "intestacy provisions" will apply. Intestacy provisions are outlined within succession law applicable in your jurisdiction and prescribe how an estate must be distributed in the absence of a Will. . Each state has their own intestacy provisions but generally they provide that an intestate estate be distributed initially between a spouse and children. 

There is more risk that your estate will not pass as intended if you separate and do not have children. This is because your estranged spouse will be entitled to your whole estate in first instance.

A recent matter where an unfortunate outcome highlighted the importance of having a Will

The deceased was separated (but not divorced) from his wife for approximately 12 years. They did not have any children and lived in separate states post separation. 

The deceased was diagnosed with cancer and his sister and her family cared for him throughout his illness. His sister and her family were also generally supportive before the diagnosis. The estranged wife did not visit the deceased while he was terminally ill, or beforehand. The deceased died and did not have a Will.

The relevant intestacy provisions dictated how the estate was to be distributed. In this case, as the deceased had no children, his estranged spouse (being the person who he was married to immediately before his death) was entitled to the whole estate. His estate was therefore transferred to her.

What should I do when I separate from my spouse?

  1. Seek advice and prepare a Will. 
  2. If you already have a Will, revise it as necessary, specifically addressing any entitlement of your estranged spouse.
  3. Finalise Family Court proceedings as soon as possible, particularly the divorce and property settlement aspects. 

* Please note that the definition of a spouse is defined differently in each state and territory. 

In New South Wales, please refer to section 104 of the Succession Act 2006 (NSW) and a 'domestic partnership is defined under section 105. For the definition of 'interstate registered relationship' under the Relationships Register Act 2010 (NSW), please see Relationships Register Regulation 2015.

In Victoria, please refer to section 3 of the Wills Act 1997 (Vic).

In Queensland, please refer to section 5AA of the Succession Act 1981 (Qld).

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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